An American Editor

April 27, 2020

On the Basics — Contracts, pro and con

By Ruth E. Thaler-Carter, Owner

An American Editor

Lately, I’ve been seeing a lot of questions about contracts between authors and editors (or other editorial freelancers and other prospective clients) — should we use them, what should go into them, how do we implement them, do we need attorneys to create them, and so on and so on.

Plenty of editors say they’ve never needed contracts in their work with individual authors. I’m glad for them; I’ve also had good luck with clients who didn’t have contracts and whose projects went smoothly enough that I didn’t regret not asking them to sign one of my own. For the most part, though, I think it’s smart to have something along the lines of a contract between service provider (editor) and client (author, publisher, organization, publication, company, university, etc.).

The con

One reason, and probably the only valid reason, not to have a contract for working with a new client is that some people are scared off by the very concept of “a contract.” It seems so … legalistic … so serious … so untrusting or suspicious. Asking for or offering a contact apparently comes across as expecting problems to arise at some point in the relationship.

One of the telecommunications companies even uses that perspective by boasting that they don’t require contracts for their services, making it look like an advantage for the consumer over providers that do. The problem? The consumer doesn’t have any protection against rate increases, service reductions and other issues that can arise during the life of the relationship.

The pro

And there’s the concern: Not having a contract with a client means that neither party has any protection in case there’s a problem. It can be worth the effort to explain to a reluctant client that a contract protects both you and the client. It gives you protection against the client not paying, paying very slowly or adding to the project without additional compensation, among other potential issues, but it also protects the client against the freelancer not doing the work as expected. Not that any of us would do that, of course, but it’s something to use to reassure the client.

The process

With the disclaimer that I am not an attorney, the good news is that a contract doesn’t have to be complicated or heavily legalistic. It can take the form of a letter of agreement or a checklist, or even a confirming e-mail message. You can ask the client to sign and return the agreement, or use language like “Unless I hear otherwise by Date X, this will constitute our agreement/contract.”

And speaking of e-mail, a contract nowadays doesn’t have to be on paper. A chain of e-mail messages describing the project and setting out and agreeing to the parameters can be treated as a contract. Just be sure to include language like “As we discussed and agreed, I will do such-and-such for this amount by that date …” — and to save those back-and-forth messages, just in case.

Contract details

What should go into a contract for editing services? Here’s a checklist I use to identify what I’m expected to do (for writing assignments, I include number of interviews and who provides the interview sources).

Genre

Scope (topic and length)

Fee or rate (per hour, word, page, project, etc.)

Definition of page

Payment policy and timing

Deadline(s)

Number of passes

Number of revisions (for writing projects)

Fee or rate for additional work beyond original scope

Expenses

Mediation jurisdiction if any problems

What you don’t need or should try not to agree to

One reason contract questions come up is the increasing tendency of clients to include draconian terms in current contracts, especially businesses and companies that aren’t used to working with freelance editors. The most-common one is expecting the freelancer or independent contractor to have liability insurance. Something like errors and omissions coverage might make sense for an investigative journalist, but editors rarely need something like liability coverage. That kind of policy is usually intended for situations where the contractor works onsite at the client’s office or property, uses heavy equipment on the client’s behalf or project, has subcontractors, and otherwise is likely to have access to the client’s information or property.

Accepting liability for your work is especially an issue for writers, editors and even proofreaders, because other people are likely to change (or not accept) what you submit. The publication process is fluid and involves people we never meet; even printers/production people have been known to introduce changes — and, unintentionally, errors — after an editor or proofreader signs off and gets paid for our role. We can’t be responsible for what happens made after we finish our part of the project.

Pointing out that you are a sole proprietor who works from home and doesn’t use heavy equipment or subcontractors can help carry the day when you’re asked to provide liability insurance to a client. If they still insist, add the cost to your contract and include language to the effect that you aren’t responsible for any changes made to your version of the material.

Authors new to the publishing process also might ask you to sign a non-disclosure agreement (NDA). These are usually benign and more valuable as assurance for an author that an editor won’t steal their precious words for some reason than for any other reason; they generally commit you to not telling the world all about the author’s work, or perhaps that you worked on their manuscript. If you’d rather not sign an NDA, you could point out that any editor who would violate an author’s trust in such a way wouldn’t stay in business for very long.

What you don’t want to sign is a non-compete agreement that limits how you can use your skills with new clients in the future, even the near future. Signing such an agreement can lock you out of doing similar work for similar (or any!) clients, which would interfere with your ability to pursue your career or business.

Protecting yourself

You might not need a formal contract of your own that’s packed with dense, incomprehensible legalese, but you at least need someone with legal knowledge to rely on when a prospective client offers a contract that seems impenetrable. It’s one thing to say, “Read any contract before signing it.” It’s another to actually read and understand some of these documents.

My attorney is an old friend from back in high school whose practice is in intellectual property, copyright and contracts. I have her look over any contract or NDA that I’m asked to sign; we swap services, but it would be worth whatever she would charge if I were paying for her help. If you don’t know anyone who would be willing to review contracts for you, check with your local bar association or chapter of Lawyers for the Arts; some professional organizations also have legal services where one consultation is free, or there’s a substantial discount on an initial request. Such reviews shouldn’t cost much, and any expense is deductible at tax time.

For a template or boilerplate language, look to professional organizations and online resources like LegalZoom. Pick one and tailor it to your needs and each project.

The ideal resource

You don’t have to take my word for any of this, and you can get a lot more advice from colleagues Dick Margulis and Karin Cather from their book, The Paper It’s Written On: Defining Your Relationship with an Editing Client. That’s a must-have for every editor’s bookcase — and well worth having no matter what kind of editorial or publishing work you do.

Ruth E. Thaler-Carter (www.writerruth.com) is an award-winning provider of editorial and publishing services for publications, independent authors, publishers, associations, nonprofits and companies worldwide, and the editor-in-chief and owner of An American Editor, which was founded by Rich Adin. She also hosts the annual Communication Central “Be a Better Freelancer”® conference for colleagues (www.communication-central.com), now co-hosted with the National Association of Independent Writers and Editors (www.naiwe.com), sponsored by An American Editor, and (still) planned this year for October 2–4 in Baltimore, MD. She can be reached at Ruth@writerruth.com or Ruth.Thaler-Carter@AnAmericanEditor.com.

2 Comments

  1. I was grateful for the opportunity to present a talk at your informative Communication Central conference with Dick Margulis. I present service agreements to potential clients as a way to protect themselves, since it states my obligations and how I’m going to help them. I’m very specific, because even editors differ on what “copyediting” means, for example. So am I editing spelling, grammar, usage, and punctuation? Am I editing for structure? Am I checking plot holes? In fiction, am I flagging issues with pacing or plot? Am I editing dialogue? Am I rewriting passages? In academic works, am I formatting references? Of course, with doctoral candidates, I require a dissertation supervisor to sign on to the service agreement as well. This is important because many disagreements between editors and clients have to do with scope of work.

    I have terms about version control and the condition of the manuscript. If the copy is corrupt, I don’t have time to Maggie* the document or figure out what’s wrong. So my agreement stipulates that the document has to be free of corrupted segments or they have to fix it and send it back, and also that if there is a technical issue with the file itself, it can affect deadlines. I also don’t want to have started editing and have a client edit their copy and tell me to work on the new document. Version control is a recipe for chaos. (Which version am I editing? What changes as the client made? Does it affect the cost? Has the document gotten longer?)

    A contract isn’t a blunt instrument, it’s a vaccine against author-editor conflict!

    Like

    Comment by karincather1 — April 27, 2020 @ 9:24 pm

  2. Oops! I forgot. Maggying is a term of art about how to fix corrupt documents by deleting the last pilcrow. But I think it does things to formatting. It’s effective, though.

    Like

    Comment by karincather1 — April 27, 2020 @ 9:25 pm


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